Rapid Antigen Self Tests for COVID-19 (also known as RAT or RAST) are soon to hit stores across the country.  As retail fuel outlets join chemists and supermarkets as locations that will be retailing RAST it is vital that retailers understand the restrictions that apply to their retail and ensure that staff are appropriately trained and instructed in what is required to meet these critical requirements to avoid breaching medical communication and competition and consumer compliance legislation.  This weeks HR Highlight will explore these restrictions and requirements around retailing these new products.

The COVID-19 RAST, which are a minimally invasive screening test that can be undertaken by consumers at home or work are a long anticipated addition to the product mix in Australia.  Having been a mainstay of international COVID-19 response for many months these RAST have been restricted in use in Australia by a requirement for the RAST to be overseen by a healthcare professional.

The Therapeutic Goods Association has changed the rules around RAST and as a result they are now able to be sold as a consumer item and to be undertaken without the supervisor of a healthcare professional.  This change has been welcomed by the community and industry, but it does come with restrictions and considerations that need to be managed onsite.

These restrictions and considerations branch from the competition and consumer compliance legislation as well as the conditions that the TGA has added to the approval for sale.

What should retailers be communicating to their staff?

In order to ensure that the RAST are being compliantly retailed, all businesses should be communicating to their staff that;

 They must not promote the RAST as a diagnostic test

This is in breach of the TGA requirements and is in breach of the false or misleading statements requirements of the Australian Consumer and Competition Compliance laws.

The RAST that are approved for retail sale are not diagnostic they are approved for screening purposes only.  As per the TGA a person can only be said to either have COVID-19 or not have COVID-19 following a diagnostic PCR test.

So staff must avoid any suggestion, recommendation or promotion that suggests the RAST can inform the customer that they have or have not got COVID-19.  Signs such as “COVID-19 Tests” or comments such as “find out if you have COVID-19” would be in direct breach of both the TGA requirement and the ACCC requirements as false and misleading, as would anything that implied surety of the result.  Appropriate signage would identify that the RAST are screening tests such as “COVID-19 Self Screening Test”.

They must not promote one brand of RAST over another

This is in breach of the TGA requirements.  It would be considered a breach to advertise or promote the brand offered onsite as better than any other brand offered at any other location.

They must be cautious in the information provided to customers about RAST

Fuel retail staff are guard towards going above and beyond for customers, but it is important that staff direct any questions about the efficacy, operation or use of RAST to the instructions in the packaging and not provide or offer any further information or recommendations.  Staff are not healthcare professionals and as such should not be providing any advice on use of a screening test for a public health risk.

COVID Controversy and Aggression

COVID-19, the controls (such as masks and check in), tests, vaccination and general public response has attracted controversy at every turn.  While the vast majority of people are complying with the requirements and going about their day, some people are actively confrontational over all elements that COVID-19 has impacted.

This awful phenomenon is something that the industry has faced over the last 18 months.  Staff have been subjected to abuse and aggression from some customers for simply requiring compliance with the law.  It is anticipated that as the RAST hit the shelves in the coming weeks that they will serve as another element for some people to harass staff about.  Businesses are advised to ensure they are talking to their staff about how to handle aggression, particularly as related to the RAST and ensuring that staff are empowered to activate response protocols (such as involving the police if requried).

Which RAST are approved for sale in Australia? 

As at 28/10/2021 see; https://www.tga.gov.au/covid-19-rapid-antigen-self-tests-are-approved-australia

Here to Help

 HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/  for more information.

Elisha Radwanowski BCom(HRM&IR)|